SC Lawyer, November 2007, #6. Ethics Watch Executive Order 2007-16.

• Author: By John Freeman

South Carolina Lawyer

Ethics Columns.

SC Lawyer, November 2007, #6.

Ethics Watch Executive Order 2007-16

South Carolina LawyerNovember 2007Ethics Watch Executive Order 2007-16By John FreemanGov. Mark Sanford issued Executive Order 2007-16 on September 20, 2007. It is a document that is of particular interest to lawyers who handle workers' compensation cases. Its significance is broader, however, for it presents further evidence of political pressures being exerted on our judicial system. This trend raises ethical issues for affected judges and lawyers.

Gov. Sanford's Order directs workers' compensation commissioners "in all contested cases to strictly apply either AMA Guides or any other accepted medical treatise or authority in making their injury compensation determinations" and to report back to the governor quarterly, "that they have used . . . such objective standards in making such compensation awards." The evident aim is to promote use of decision-making standards by workers' compensation commissioners calculated to yield lower awards to workers' compensation claimants. The governor demands in the Order that each workers' compensation commissioner file a quarterly report with the Office of the Governor attesting that his or her decision-making conforms to the guidelines specified by the governor in Order 2007-16. From an ethics standpoint, the Order is an intriguing document on multiple levels.

First, there is the issue of why the Order was issued in the first place. What is it that the governor's Order seeks to accomplish? If it simply amounts to an exhortation by the governor to the members of the Workers' Compensation Commission to please apply the law properly, then it certainly is unnecessary, since the commissioners are obligated to apply the law accurately to the best of their ability. They owe this duty based on their oath of office to discharge their duties to the best of their abilities and based on Canon 3B(2) of the Code of Judicial Conduct, which demands they be "faithful to the law." (Our workers' compensation commissioners are subject to the ethical rules for judges because of legislation enacted in 2006 which designates them to be operating under the Code of Judicial Conduct.) Hence, if the Order's intent merely was to convey that the commissioners should do the work they are sworn to do, it seems redundant and hence a waste of time.

On the other hand, if the Order's intent is to pressure or intimidate the commissioners as judges hearing public legal disputes, then it is a most disturbing document. People who are involved in the administration of justice are not to be threatened. This is central to having a nation that operates under a credible rule of law. In this country, we have made it a crime to attempt to intimidate or harass a witness in a federal proceeding. See 18 U.S.C. § 1512. The same public policy behind that law suggests that seeking to intimidate judges is not a good thing to do, either. If the Order's intent was to pressure commissioners - that is, judges - to change the law quietly on a case-by-case basis out of fear for their jobs, it would represent conduct prejudicial to the administration of justice and would be highly improper if not illegal.

An attempt to change existing law by executive order puts the commissioners in an untenable ethical position, for it asks them to forsake their obligation to follow the law, which they are sworn to do, and move in another direction, which for them is unethical territory. The way to change the law is through action taken by the legislative branch, not through executive order fiat. When they take their oath of office, the commissioners swear they will protect and defend the Constitutions of this state and of the United States. Due process rights are embedded in those documents. Gov. Sanford obviously is familiar with constitutional requirements, for his Order twice refers to the constitutional right of due process. Among other things, due process requires that existing law be applied to litigants honestly and fairly until it is changed, with changes occurring properly, as through the legislative process, not based on whim or caprice.

There is another aspect to Gov. Sanford's Executive Order that is particularly problematic from an ethics standpoint. In workers' compensation cases, claimants customarily are aligned against their employers and their employers' insurers. The playing field, in a sense, reflects workers' versus business interests. Gov. Sanford's Order in tone and content seems tilted to favor business interests, a group that for him is a key political constituency. The ethics problem is that any command, explicit or veiled, that pushes workers' compensation commissioners to alter their decision-making to favor business interests will, if followed, lead to the commissioners violating Canon Two of the Code of Judicial Conduct. That canon requires in part that, "A judge shall . . . act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

Commissioners who abandon currently acceptable decision-making processes to follow Gov. Sanford's implicit direction that they favor one class of litigants over another are subject to attack for violating Canon Two. Favoring one side over another in litigation, even if done under duress, is not behavior calculated to promote confidence in judges' "integrity and impartiality." And, as noted above, workers' compensation commissioners are, first and foremost, judges.